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2005 DIGILAW 477 (GAU)

Prasanna Kr. Khemani v. Biswanath Cherenia

2005-06-24

RANJAN GOGOI

body2005
JUDGMENT Ranjan Gogoi, J. 1. The Plaintiff, who has been unsuccessful in obtaining a decree of eviction under the provisions of the Assam Urban Areas Rent Control Act, 1972, has instituted the present revision proceeding challenging the appellate judgment and decree dated 17.1.2000 by which the decree of dismissal of the suit has been affirmed. 2. Title Suit No. 66 of 1981 was filed by one Prasanna Kumar Khemani as the Karta of Inderchand Khemani, a Hindu undivided Mitakshara Family, for eviction of the Defendant, one M/s Thaniram Mohanlal, Anr. Hindu Undivided Mitakshara Family, represented by its Karta Biswanath Chirania. The suit in question was filed on the ground that the Defendant is a defaulter in the payment of monthly rent of the suit premises and further that the suit premises was also bona fide required by the Plaintiff for its own use and occupation. The plaint case is that the suit premises originally belonged to a Hindu undivided Mitakshara family doing business in the name and style of M/s Meghraj Hariram. One Meghraj Khemani was the Karta of the aforesaid Hindu undivided Mitakshara family and he was enjoying the suit property with his two sons, Hariram Khemani and Bojranglal Khemani. According to the Plaintiff, after the death of Meghraj Khemani, Hariram Khemani became the Karta of the said Hindu undivided Mitakshara family whereas Bojranglal Khemani started his own business under the name and style of Anr. Hindu undivided Mitakshara family known as M/s Bojranglal Chand Prasad. The further case of the Plaintiff, as stated in the plaint, is that on the death of Hariram Khemani, his son Inderchand Khemani started his own business in the name and style of a Hindu undivided Mitakshara family known as Inderchand Khemani and both Inderchand and Bojranglal who were jointly owning and possessing the suit property, mutually agreed to partition their shares sometime in the year 1957 as a result of which the suit property fell to the share of the Hindu undivided Mitakshara family represented by Inderchand Khemani. It may be noticed at this stage that notwithstanding the above case pleaded with regard to the mutual agreement of separation between Inderchand Khemani and Bojranglal Khemani, in the course of the evidence led in the suit the Plaintiff had asserted a case of such separation between Hariram Khemani, i.e. the father of Inderchand Khemani and Bojranglal Khemani. It may be noticed at this stage that notwithstanding the above case pleaded with regard to the mutual agreement of separation between Inderchand Khemani and Bojranglal Khemani, in the course of the evidence led in the suit the Plaintiff had asserted a case of such separation between Hariram Khemani, i.e. the father of Inderchand Khemani and Bojranglal Khemani. Be that as it may, it is the further case of the Plaintiff that upon mutual separation, as noted above, the Defendant was informed of the same and he had attorney to the tenancy under the Plaintiff. According to the Plaintiff, the Defendant had defaulted in the payment of monthly rent after March, 1981 and that the suit premises was also required by the Plaintiff for its own use and occupation. It is in the above circumstances that the Title Suit No. 66 of 1981 was filed claiming the reliefs earlier noted. 3. The Defendant contested the suit by filing a written statement wherein it was contended that the tenancy in question was created sometime in the year 1953 between M/s Meghraj Hariram represented by Hariram Khemani and one M/s Thaniram Mohanlal, Anr. Hindu undivided Mitakshara family of which the father of the Defendant was the Karta. According to the Defendant, the landlord M/s Meghraj Hariram was represented by its Karta, Hariram Khemani at the time when the tenancy was created. The Defendant, in the written statement filed, had further contended that the landlord M/s Meghraj Hariram was not formally dissolved and the suit property continued to remain registered in its name. The coparceners of the aforesaid Meghraj Hariram not being impleaded as co-Plaintiffs, the Defendant took the stand that the suit filed by the Plaintiff was not maintainable in the absence of the aforesaid coparceners. In addition, the Defendant, in the written statement filed, took the plea that his father Thaniram Chirania, who represented M/s Thaniram Mohanlal as its Karta at the time when the tenancy was created, died in the year 1957 leaving besides the Defendant, three other sons, who not being impleaded in the suit, the Plaintiff's suit was again bad for defect of parties. That apart, the Defendant had contended that it is his eldest brother Nandlal Chirania who was/is the Karta of M/s Thaniram Mohanlal and, therefore, the Plaintiff's suit was bad on the aforesaid account also. That apart, the Defendant had contended that it is his eldest brother Nandlal Chirania who was/is the Karta of M/s Thaniram Mohanlal and, therefore, the Plaintiff's suit was bad on the aforesaid account also. In so far as the alleged default in the matter of payment of monthly rent is concerned, the case of the Defendant was that by arrangement between the parties there was no fixed rate for payment of rent and in the past rent for several months together used to be collected by any of the coparcener of the Plaintiff Hindu undivided Mitakshara family. In some instances, rent was collected for as many as 18 months together. The Defendant, therefore, contested the claim of the Plaintiff as regards default by contending that there being no due date of payment of rent the Defendant cannot be held to be a defaulter under the provisions of the Act. 4. On the pleadings advanced by the parties, the learned trial Court framed as many as six issues for trial in the suit. Two witnesses were examined by the Plaintiff in support of its case whereas the Defendant examined three witnesses. A large number of documents were also brought on record by the contesting parties. At the conclusion of the trial, the learned trial Court by its judgment and decree dated 25.5.1999 dismissed the Plaintiff's suit by holding the same to be not maintainable for defect of parties. The aforesaid judgment and decree of the learned trial Court having been affirmed in appeal by the impugned judgment and decree dated 17.1.2000, the present revision has been filed. 5. I have heard Sri G.N. Sahewalla, learned senior Counsel for the revision Petitioner and Mr. C.K. Sarma Baruah, learned senior Counsel appearing for the Respondent. 6. A reading of the appellate judgment and decree dated 17.1.2000 would go to show that the decree of dismissal of the suit passed by the learned trial Court has been affirmed in appeal on three principal basis. Firstly, the Plaintiff's suit has been found to be bad for non-impleadment of the coparceners of Meghraj Hariram, the Hindu undivided Mitaskshara family, which had let out the suit premises to the Defendant through its Karta, Hariram Khemani. Firstly, the Plaintiff's suit has been found to be bad for non-impleadment of the coparceners of Meghraj Hariram, the Hindu undivided Mitaskshara family, which had let out the suit premises to the Defendant through its Karta, Hariram Khemani. In addition, the learned Court below has come to the conclusion that the coparceners of two other Hindu undivided Mitakshara families i.e. Sew Narayan Meghraj, the original owner of the suit premises and the Hindu undivided Mitakshara family of Inderchand Khemani were necessary parties who not being impleaded in the suit, the Plaintiffs suit was held to be not maintainable. Secondly, the learned Court below took the view that as the tenancy was created in favour of the Hindu undivided Mitakshara family known as M/s Thaniram Mohanlal, all the coparceners of the Defendant Hindu undivided Mitakshara family should have been impleaded. It was further held that as one Nandlal Chirania, who was the Karta of M/s Thaniram Mohanlal, not having been impleaded in the said capacity, the Plaintiff's suit was not maintainable. Lastly, the learned Court below, on a consideration of the materials on record, held that in view of the prevailing practice between the parties with regard to tender of rent, it cannot be said that there was any particular due date for payment of rent so as to hold the Defendant to be a defaulter. Insofar as the plea of bona fide requirement is concerned, the learned Court below came to the conclusion that the said requirement was not established by the materials adduced by the Plaintiff. 7. It being the admitted case of the parties that the tenancy in question was created by the Hindu undivided Mitakshara family known as Meghraj Hariram in the year 1953, it is difficult to understand as to why the predecessor Hindu undivided Mitakshara family i.e. M/s Sew Narayan Meghraj or its coparceners were considered by the learned Court below to be necessary parties. Insofar as the Hindu undivided Mitakshara family Inderchand Khemani is concerned, as the said Hindu undivided Mitakshara family was the Plaintiff itself represented by its Karta, it is again difficult to visualize why the coparceners of the said Hindu undivided Mitakshara family would be necessary parties. Insofar as the Hindu undivided Mitakshara family Inderchand Khemani is concerned, as the said Hindu undivided Mitakshara family was the Plaintiff itself represented by its Karta, it is again difficult to visualize why the coparceners of the said Hindu undivided Mitakshara family would be necessary parties. The learned court below appears to have come to the conclusion that the coparceners of the aforesaid two Hindu undivided Mitakshara families are necessary parties in order to ascertain the claim of the Plaintiff regarding the family partition settlement that took place in the year 1957, a fact which was held to be not proved as the same was not recited in the document (Ext-1) relied upon by the Plaintiff in this regard. For the same reason, the coparceners of the Hindu undivided Mitakshara family which had created the tenancy i.e. Meghraj Hariram were also considered to be necessary parties coupled with the fact that the said Hindu undivided Mitakshara family has not been dissolved and the suit property stood registered in its name. The reasoning adopted by the learned Court below has overlooked a vital fact i.e. that even if it is accepted that the other Hindu undivided Mitakshara families had a share in the suit property, the Plaintiff was admittedly a co-owner of the same and had admittedly been receiving the rent for the suit premises from the Defendant, a fact established by the various rent receipts proved and exhibited in course of the trial of the suit. The said facts would bring the Plaintiff Hindu undivided Mitakshara family within the meaning of the expression 'Landlord' as appearing in Section 2(c) of the Act and clearly establishes the Plaintiffs right to sue. This Court, therefore, is unable to accept the conclusions recorded by the learned Court below on the aforesaid point. 8. This would take the Court to a consideration of the second conclusion reached by the learned Court below i.e. that the Plaintiffs suit is bad for describing Bishwanath Chirania as the Karta of M/s Thaniram Mohanlal and for not impleading Nandlal Chirania as the Karta of the Defendant Hindu undivided mitakshara family. 8. This would take the Court to a consideration of the second conclusion reached by the learned Court below i.e. that the Plaintiffs suit is bad for describing Bishwanath Chirania as the Karta of M/s Thaniram Mohanlal and for not impleading Nandlal Chirania as the Karta of the Defendant Hindu undivided mitakshara family. The elaborate reference to the several Text Books on Hindu Law made by the learned Counsels for the contesting parties as well as the judicial precedents cited leave little room for doubt that in a Mitakshara Hindu undivided family it is the eldest male member who is the Karta and the Hindu undivided Mitakshara family must be represented by its Karta. However, exceptions to the above Rule are not unknown and the eldest or elder male member of the Hindu undivided Mitakshara family may consent to a younger male member acting as the Karta of the Hindu undivided Mitakshara family. In the present case, as Nandlal Chirania, the eldest male member of M/s Thaniram Mohanlal, is/was admittedly the Karta of the said Hindu undivided Mitakshara family M/s Thaniram Mohanlal and Biswanth Chirania is the youngest of the four brothers, learned Counsel for the Petitioner has argued that the present would be one of those exceptions where the youngest brother had been acting as the Karta and in this regard has relied on the evidence of D.W. 1 (Defendant himself) to the effect that eldest brother Nandlal Chirania was residing and doing business at Simuluguri whereas the other brothers. had also been residing and doing business elsewhere. Merely because the eldest brother, who, admittedly, is the Karta was residing at some other place it cannot be said that the said eldest brother had ceased to be the Karta of the Hindu undivided Mitakshara family. Much more positive evidence of renunciation of the role of the Karta would be required which is not forthcoming in the present case. There is hardly any convincing and satisfactory material, except what has been noted above, to show that the youngest son Bishwanath Chirania was functioning as the Karta with the consent of his elder brothers including the Karta, Nandlal Chirania The evidence on record at best points out that the Karta, Nandlal Chirania and the other elder brothers have been residing elsewhere and it is Biswanath Chirania who is in possession of the suit premises. That, however, would not make Biswanath the Karta of the Defendant Hindu undivided Mitakshara family and what the Court has to look for is positive evidence of renunciation of the role of Karta by the eldest brother, Nandlal, which is not forthcoming. In such circumstances the Court must hold that the tenancy having been created in favour of the Defendant Hindu undivided Mitakshara family it could have been represented only by its Karta, Nandlal Chirania and not by Bishwanath Chirania The conclusions to the above effect reached by the learned Court below are, therefore, affirmed and the inevitable conclusion that must result from such affirmation is that the Plaintiff's suit must be held to be not maintainable. 9. The findings recorded by the learned Court below on the point of default committed by the Defendant in the matter of payment of monthly rent has already been noted. On the said point of default, the argument advanced on behalf of the Petitioner-Plaintiff before this Court is that even during the pendency of the proceedings for eviction at different stages including the present stage, no rent has been paid or deposited by the Defendant. Relating on two decisions of this Court in the case of Abdul Matin Choudhury and Ors. v. Nilayananda Dutta Banik reported in (1997) 2 GLT 590 and in the case of Satya Deo Bhitha and Anr. v. Rajkumar Devi and Ors. L/H Late Babanji Pathak reported in 2001 (3) GLT 564 : (2002) 1 GLR 122 learned Counsel for the Petitioner has submitted that in view of the aforesaid failure on the part of the Defendant during the pendency of the proceedings for eviction, the Plaintiff should be declared to be a defaulter. The law laid down by this Court in the cases of Abdul Matin Choudhury and Ors. (supra) and Satya Deo Bhitha and Anr. (supra) can only be applied if a finding of fact can be recorded by the Court that the Defendant tenant has not paid any rent during the pendency of the proceedings for eviction or at least during the pendency of the proceedings before this Court. The materials on record do not generate sufficient comfort in the Court that the said finding should be recorded by this Court on the basis of a plea raised by the Plaintiff/Petitioner at the stage of hearing of the case. 10. The materials on record do not generate sufficient comfort in the Court that the said finding should be recorded by this Court on the basis of a plea raised by the Plaintiff/Petitioner at the stage of hearing of the case. 10. In view of the aforesaid discussion and on the conclusions reached, this Court must concur with the view taken by the learned courts below that the Plaintiff's suit is not maintainable in law. Accordingly, this revision is dismissed and the judgment and decree dated 17.1.2000 passed by the learned Civil Judge Senior Division, Dibrugarh in Title Appeal No. 10 of 1999 is hereby affirmed. Petition dismissed.